About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
1996
>>
[1996] ZACC 16
|

|

Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others (CCT17/96) [1996] ZACC 16; 1996 (8) BCLR 1015; 1996 (4) SA 672 (25 July 1996)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 17/96
THE AZANIAN PEOPLES ORGANIZATION
(AZAPO) First
Applicant
NONTSIKELELO MARGARET BIKO Second Applicant
CHURCHILL MHLELI
MXENGE Third Applicant
CHRIS RIBEIRO Fourth
Applicant
versus
THE PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA First Respondent
THE GOVERNMENT OF THE REPUBLIC OF
SOUTH
AFRICA Second Respondent
THE MINISTER OF JUSTICE Third Respondent
THE
MINISTER OF SAFETY AND SECURITY Fourth Respondent
THE CHAIRPERSON OF THE
TRUTH AND
RECONCILIATION COMMISSION Fifth Respondent
Heard on: 30 May 1996
Decided on: 25 July
1996
JUDGMENT
MAHOMED
DP:
[1] For decades South African history has been dominated by a deep
conflict between a minority which reserved for itself all control
over the
political instruments of the state and a majority who sought to resist that
domination. Fundamental human rights became
a major casualty of this conflict
as the resistance of those punished by their denial was met by laws designed to
counter the effectiveness
of such resistance. The conflict deepened with the
increased sophistication of the economy, the rapid acceleration of knowledge
and
education and the ever increasing hostility of an international community
steadily outraged by the inconsistency which had become
manifest between its own
articulated ideals after the Second World War and the official practices which
had become institutionalised
in South Africa through laws enacted to give them
sanction and teeth by a Parliament elected only by a privileged minority. The
result was a debilitating war of internal political dissension and
confrontation, massive expressions of labour militancy, perennial
student
unrest, punishing international economic isolation, widespread dislocation in
crucial areas of national endeavour, accelerated
levels of armed conflict and a
dangerous combination of anxiety, frustration and anger among expanding
proportions of the populace.
The legitimacy of law itself was deeply wounded as
the country haemorrhaged dangerously in the face of this tragic conflict which
had begun to traumatise the entire nation.
[2] During the eighties it
became manifest to all that our country with all its natural wealth, physical
beauty and human resources
was on a disaster course unless that conflict was
reversed. It was this realisation which mercifully rescued us in the early
nineties
as those who controlled the levers of state power began to negotiate a
different future with those who had been imprisoned, silenced,
or driven into
exile in consequence of their resistance to that control and its consequences.
Those negotiations resulted in an
interim
Constitution
[1]
committed to a
transition towards a more just, defensible and democratic political order based
on the protection of fundamental human
rights. It was wisely appreciated by
those involved in the preceding negotiations that the task of building such a
new democratic
order was a very difficult task because of the previous history
and the deep emotions and indefensible inequities it had generated;
and that
this could not be achieved without a firm and generous commitment to
reconciliation and national unity. It was realised
that much of the unjust
consequences of the past could not ever be fully reversed. It might be
necessary in crucial areas to close
the book on that past.
[3] This
fundamental philosophy is eloquently expressed in the epilogue to the
Constitution which reads as follows:
“
National Unity and
Reconciliation
This Constitution provides a historic bridge between the past of a deeply
divided society characterised by strife, conflict, untold
suffering and
injustice, and a future founded on the recognition of human rights, democracy
and peaceful co-existence and development
opportunities for all South Africans,
irrespective of colour, race, class, belief or sex.
The pursuit of national unity, the well-being of all South African citizens and
peace require reconciliation between the people of
South Africa and the
reconstruction of society.
The adoption of this Constitution lays the secure foundation for the people of
South Africa to transcend the divisions and strife
of the past, which generated
gross violations of human rights, the transgression of humanitarian principles
in violent conflicts
and a legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding
but not for vengeance, a need for reparation but not
for retaliation, a need for
ubuntu but not for victimisation.
In order to advance such reconciliation and reconstruction, amnesty shall be
granted in respect of acts, omissions and offences associated
with political
objectives and committed in the course of the conflicts of the past. To this
end, Parliament under this Constitution
shall adopt a law determining a firm
cut-off date, which shall be a date after 8 October 1990 and before 6 December
1993, and providing
for the mechanisms, criteria and procedures, including
tribunals, if any, through which such amnesty shall be dealt with at any time
after the law has been passed.
With this Constitution and these commitments we, the people of South Africa,
open a new chapter in the history of our
country.”
Pursuant to the provisions of the epilogue,
Parliament enacted during 1995 what is colloquially referred to as the Truth and
Reconciliation
Act. Its proper name is the Promotion of National Unity and
Reconciliation Act 34 of 1995 (“the Act”).
[4] The Act
establishes a Truth and Reconciliation Commission. The objectives of that
Commission are set out in section 3. Its main
objective is to “promote
national unity and reconciliation in a spirit of understanding which transcends
the conflicts and
divisions of the past”. It is enjoined to pursue that
objective by “establishing as complete a picture as possible of
the
causes, nature and extent of the gross violations of human rights”
committed during the period commencing 1 March 1960
to the “cut-off
date”.
[2]
For this purpose the
Commission is obliged to have regard to “the perspectives of the victims
and the motives and perspectives
of the persons responsible for the commission
of the violations”.
[3]
It also
is required to facilitate
“... the granting of amnesty to persons who make full disclosure of all
the relevant facts relating to acts associated with
a political objective
...”
[4]
The
Commission is further entrusted with the duty to establish and to make known
“the fate or whereabouts of victims”
and of “restoring the
human and civil dignity of such victims” by affording them an opportunity
to relate their own accounts
of the violations and by recommending
“reparation measures” in respect of such
violations
[5]
and finally to compile a
comprehensive report in respect of its functions, including the recommendation
of measures to prevent the
violation of human
rights.
[6]
[5] Three committees
are established for the purpose of achieving the objectives of the
Commission.
[7]
The first committee is
the Committee on Human Rights Violations which conducts enquiries pertaining to
gross violations of human
rights during the prescribed period, with extensive
powers to gather and receive evidence and
information.
[8]
The second committee
is the Committee on Reparation and Rehabilitation which is given similar powers
to gather information and receive
evidence for the purposes of ultimately
recommending to the President suitable reparations for victims of gross
violations of human
rights.
[9]
The
third and the most directly relevant committee for the purposes of the present
dispute is the Committee on
Amnesty.
[10]
This is a committee
which must consist of five persons of which the chairperson must be a
judge.
[11]
The Committee on Amnesty
is given elaborate powers to consider applications for
amnesty.
[12]
The Committee has the
power to grant amnesty in respect of any act, omission or offence to which the
particular application for
amnesty relates, provided that the applicant
concerned has made a full disclosure of all relevant facts and provided further
that
the relevant act, omission or offence is associated with a political
objective committed in the course of the conflicts of the past,
in accordance
with the provisions of sections 20(2) and 20(3) of the
Act.
[13]
These sub-sections contain
very detailed provisions pertaining to what may properly be considered to be
acts “associated with
a political objective”. Sub-section (3) of
section 20 provides as follows:
“Whether a particular act, omission or offence contemplated in subsection
(2) is an act associated with a political objective,
shall be decided with
reference to the following
criteria:
(a) The motive of the person who committed the act, omission or offence;
(b) the context in which the act, omission or offence took place, and in
particular whether the act, omission or offence was committed
in the course of
or as part of a political uprising, disturbance or event, or in reaction
thereto;
(c) the legal and factual nature of the act, omission or offence, including the
gravity of the act, omission or offence;
(d) the object or objective of the act, omission or offence, and in particular
whether the act, omission or offence was primarily
directed at a political
opponent or State property or personnel or against private property or
individuals;
(e) whether the act, omission or offence was committed in the execution of an
order of, or on behalf of, or with the approval of,
the organisation,
institution, liberation movement or body of which the person who committed the
act was a member, an agent or a
supporter; and
(f) the relationship between the act, omission or offence and the political
objective pursued, and in particular the directness and
proximity of the
relationship and the proportionality of the act, omission or offence to the
objective pursued,
but does not include any act, omission or offence committed by any person
referred to in subsection (2) who acted-
(i) for personal gain:
Provided that an act, omission or offence by any person who acted and received
money or anything of value as
an informer of the State or a former state,
political organisation or liberation movement, shall not be excluded only on the
grounds
of that person having received money or anything of value for his or her
information; or
(ii) out of personal malice, ill-will or spite, directed against the victim
of the acts committed.”
[6] After making provision for certain
ancillary matters, section 20(7) (the constitutionality of which is impugned in
these proceedings)
provides as follows:
“(7) (a) No person who has been granted amnesty in respect of an act,
omission or offence shall be criminally or civilly liable
in respect of such
act, omission or offence and no body or organisation or the State shall be
liable, and no person shall be vicariously
liable, for any such act, omission or
offence.
(b) Where amnesty is granted to any person in respect of any act, omission or
offence, such amnesty shall have no influence upon
the criminal liability of any
other person contingent upon the liability of the first-mentioned person.
(c) No person, organisation or state shall be civilly or vicariously liable for
an act, omission or offence committed between 1
March 1960 and the cut-off date
by a person who is deceased, unless amnesty could not have been granted in terms
of this Act in respect
of such an act, omission or
offence.”
Section 20(7) is followed by sections 20(8),
20(9) and 20(10) which deal expressly with both the formal and procedural
consequences
of an amnesty in the following terms:
“(8) If any person-
(a) has been charged with and is standing trial in respect of an offence
constituted by the act or omission in respect of which amnesty
is granted in
terms of this section; or
(b) has been convicted of, and is awaiting the passing of sentence in respect
of, or is in custody for the purpose of serving a sentence
imposed in respect
of, an offence constituted by the act or omission in respect of which amnesty is
so granted,
the criminal proceedings shall forthwith upon publication of the proclamation
referred to in subsection (6) become void or the sentence
so imposed shall upon
such publication lapse and the person so in custody shall forthwith be
released.
(9) If any person has been granted amnesty in respect of any act or omission
which formed the ground of a civil judgment which was
delivered at any time
before the granting of the amnesty, the publication of the proclamation in terms
of subsection (6) shall not
affect the operation of the judgment in so far as it
applies to that person.
(10) Where any person has been convicted of any offence constituted by an act
or omission associated with a political objective
in respect of which amnesty
has been granted in terms of this Act, any entry or record of the conviction
shall be deemed to be expunged
from all official documents or records and the
conviction shall for all purposes, including the application of any Act of
Parliament
or any other law, be deemed not to have taken place: Provided that
the Committee may recommend to the authority concerned the taking
of such
measures as it may deem necessary for the protection of the safety of the
public.”
[14]
[7] What
is clear from section 20(7), read with sections 20(8), (9) and (10), is that
once a person has been granted amnesty in respect
of an act, omission or offence
(a) the offender can no longer be held “criminally liable” for such
offence and no prosecution in respect thereof can
be maintained against him or
her;
(b) such an offender can also no longer be held civilly liable personally for
any damages sustained by the victim and no such civil
proceedings can
successfully be pursued against him or her;
(c) if the wrongdoer is an employee of the state, the state is equally
discharged from any civil liability in respect of any act
or omission of such an
employee, even if the relevant act or omission was effected during the course
and within the scope of his
or her employment; and
(d) other bodies, organisations or persons are also exempt from any liability
for any of the acts or omissions of a wrongdoer which
would ordinarily have
arisen in consequence of their vicarious liability for such acts or
omissions.
[8] The applicants sought in this court to attack
the constitutionality of section 20(7) on the grounds that its consequences are
not authorised by the Constitution. They aver that various agents of the state,
acting within the scope and in the course of their
employment, have unlawfully
murdered and maimed leading activists during the conflict against the racial
policies of the previous
administration and that the applicants have a clear
right to insist that such wrongdoers should properly be prosecuted and punished,
that they should be ordered by the ordinary courts of the land to pay adequate
civil compensation to the victims or dependants of
the victims and further to
require the state to make good to such victims or dependants the serious losses
which they have suffered
in consequence of the criminal and delictual acts of
the employees of the state. In support of that attack Mr Soggot SC, who
appeared
for the applicants together with Mr Khoza, contended that section 20(7)
was inconsistent with section 22 of the Constitution which
provides that
“[e]very person shall have the right to have justiciable disputes settled
by a court of law or, where appropriate, another
independent or impartial
forum.”
He submitted that the Amnesty Committee was
neither “a court of law” nor an “independent or impartial
forum”
and that in any event the Committee was not authorised to settle
“justiciable disputes”. All it was simply required
to decide was
whether
amnesty
should be granted in respect of a particular act,
omission or offence.
[9] The effect of an amnesty undoubtedly impacts
upon very fundamental rights. All persons are entitled to the protection of the
law against unlawful invasions of their right to life, their right to respect
for and protection of dignity and their right not to
be subject to torture of
any kind. When those rights are invaded those aggrieved by such invasion have
the right to obtain redress
in the ordinary courts of law and those guilty of
perpetrating such violations are answerable before such courts, both civilly and
criminally. An amnesty to the wrongdoer effectively obliterates such
rights.
[10] There would therefore be very considerable force in the
submission that section 20(7) of the Act constitutes a violation of section
22
of the Constitution, if there was nothing in the Constitution itself which
permitted or authorised such violation. The crucial
issue, therefore, which
needs to be determined, is whether the Constitution, indeed, permits such a
course. Section 33(2) of the
Constitution provides that
“[s]ave as provided for in subsection (1) or any other provision of this
Constitution, no law, whether a rule of common law,
customary law or
legislation, shall limit any right entrenched in this
Chapter.”
Two questions arise from the provisions of
this sub-section. The first question is whether there is “any other
provision in
this Constitution” which permits a limitation of the right in
section 22 and secondly if there is not, whether any violation
of section 22 is
a limitation which can be justified in terms of section 33(1) of the
Constitution which reads as follows:
“The rights entrenched in this Chapter may be limited by law of general
application, provided that such
limitation-
(a) shall be permissible only to the extent that it
is-
(i) reasonable; and
(ii) justifiable in an open and democratic society based on freedom and
equality; and
(b) shall not negate the essential content of the right in question,
and provided further that any limitation to-
(aa) a right
entrenched in section 10, 11, 12, 14(1), 21, 25 or 30(1)(d) or (e) or (2);
or
(bb) a right entrenched in section 15, 16, 17, 18, 23 or 24, in so far as
such right relates to free and fair political activity,
shall, in addition to being reasonable as required in paragraph (a)(i), also be
necessary.”
[11] Mr Marcus, who together with Mr D
Leibowitz appeared for the Respondents, contended that the epilogue, which I
have previously
quoted, is indeed a “provision of this Constitution”
within the meaning of section 33(2). He argued that any law conferring
amnesty
on a wrongdoer in respect of acts, omissions and offences associated with
political objectives and committed during the prescribed
period, is therefore a
law properly authorised by the Constitution.
[12] It is therefore
necessary to deal, in the first place, with the constitutional status of the
epilogue. In the founding affidavit
in support of the application for direct
access to this court made by the deputy president of the first applicant,
reliance was placed
on the Constitutional Principles contained in schedule 4 to
the Constitution and it was submitted that
“[the] Constitutional Principles in Schedule 4 enjoy a higher status to
that of other sections of the Constitution, in that,
in terms of Section 74(1)
of the Constitution, it is not permissible to amend the Constitutional
Principles and they shall be included
in the final Constitution.
To the extent that, therefore, the post-end clause is in conflict with
Constitutional Principle VI, the latter should
prevail.”
Constitutional Principle VI provides that
“[t]here shall be a separation of powers between the legislature,
executive and the
judiciary, with appropriate checks and balances to ensure
accountability, responsiveness and openness.”
[13] During oral
argument before us this submission was wisely not pressed by counsel for the
applicants. Even assuming in favour
of the applicants that there is some
potential tension between the language of section 20(7) of the Act and
Constitutional Principle
VI, it can be of no assistance to the applicants in
their attack on the status of the epilogue. The purpose of schedule 4 to the
Constitution is to define the principles with which a new constitutional text
adopted by the Constitutional Assembly must
comply.
[15]
The new constitutional
text has no force and effect unless the Constitutional Court has certified that
the provisions of the text
comply with these Constitutional
Principles.
[16]
[14] The
Constitutional Principles have no effect on the
status
of the epilogue.
That status is determined by section 232(4) of the Constitution which provides
as follows:
“In interpreting this Constitution a provision in any Schedule, including
the provision under the heading
‘National Unity and
Reconciliation’
, to this Constitution shall not by reason only of the
fact that it is contained in a Schedule, have a lesser status than any other
provision of this Constitution which is not contained in a Schedule, and such
provision shall for all purposes be deemed to form
part of the substance of this
Constitution.”
The epilogue, therefore, has no lesser
status than any other part of the Constitution. As far as section 22 is
concerned it therefore
would have the same effect as a provision within section
22 itself which enacted that:
“Nothing contained in this sub-section shall preclude Parliament from
adopting a law providing for amnesty to be granted in
respect of acts, omissions
and offences associated with political objectives committed during a defined
period and providing for
the mechanisms, criteria and procedures, including
tribunals, if any, through which such amnesty shall be dealt with at any time
after the law has been passed.”
What is clear is that
Parliament not only has the authority in terms of the epilogue to make a law
providing for amnesty to be granted
in respect of the acts, omissions and
offences falling within the category defined therein but that it is in fact
obliged to do so.
This follows from the wording in the material part of the
epilogue which is that “Parliament under this Constitution
shall
adopt a law” providing, inter alia, for the “mechanisms, criteria
and procedures ... through which ... amnesty shall
be dealt
with”.
[15] It was contended that even if this is the proper
interpretation of the status of the epilogue and even if the principle of
“amnesty”
is authorised by the Constitution, it does not authorise,
in particular, the far-reaching amnesty which section 20(7) allows. In
his
heads of argument on behalf of the applicants, Mr Soggot conceded that the
wording of the epilogue provides
“... a clear indication that the Constitution contemplates the grant of
amnesty in respect of offences associated with political
objectives and
committed in the course of the conflicts of the past, including offences
involving gross violations of human rights.”
At the
commencement of oral argument Mr Soggot informed us, however, that he had been
instructed by his clients to withdraw this concession
and he therefore did not
abandon the submission that section 20(7) was unconstitutional in all respects
and that Parliament had no
constitutional power to authorise the Amnesty
Committee to indemnify any wrongdoer either against criminal or civil liability
arising
from the perpetration of acts falling within the categories described in
the legislation.
Amnesty in respect of criminal liability
[16] I
understand perfectly why the applicants would want to insist that those
wrongdoers who abused their authority and wrongfully
murdered, maimed or
tortured very much loved members of their families who had, in their view, been
engaged in a noble struggle to
confront the inhumanity of apartheid, should
vigorously be prosecuted and effectively be punished for their callous and
inhuman conduct
in violation of the criminal law. I can therefore also
understand why they are emotionally unable to identify themselves with the
consequences of the legal concession made by Mr Soggot and if that concession
was wrong in law I would have no hesitation whatsoever
in rejecting
it.
[17] Every decent human being must feel grave discomfort in living
with a consequence which might allow the perpetrators of evil acts
to walk the
streets of this land with impunity, protected in their freedom by an amnesty
immune from constitutional attack, but the
circumstances in support of this
course require carefully to be appreciated. Most of the acts of brutality and
torture which have
taken place have occurred during an era in which neither the
laws which permitted the incarceration of persons or the investigation
of
crimes, nor the methods and the culture which informed such investigations, were
easily open to public investigation, verification
and correction. Much of what
transpired in this shameful period is shrouded in secrecy and not easily capable
of objective demonstration
and proof. Loved ones have disappeared, sometimes
mysteriously and most of them no longer survive to tell their tales. Others
have
had their freedom invaded, their dignity assaulted or their reputations
tarnished by grossly unfair imputations hurled in the fire
and the cross-fire of
a deep and wounding conflict. The wicked and the innocent have often both been
victims. Secrecy and authoritarianism
have concealed the truth in little
crevices of obscurity in our history. Records are not easily accessible,
witnesses are often
unknown, dead, unavailable or unwilling. All that often
effectively remains is the truth of wounded memories of loved ones sharing
instinctive suspicions, deep and traumatising to the survivors but otherwise
incapable of translating themselves into objective and
corroborative evidence
which could survive the rigours of the law. The Act seeks to address this
massive problem by encouraging
these survivors and the dependants of the
tortured and the wounded, the maimed and the dead to unburden their grief
publicly, to
receive the collective recognition of a new nation that they were
wronged, and crucially, to help them to discover what did in truth
happen to
their loved ones, where and under what circumstances it did happen, and who was
responsible. That truth, which the victims
of repression seek so desperately to
know is, in the circumstances, much more likely to be forthcoming if those
responsible for such
monstrous misdeeds are encouraged to disclose the whole
truth with the incentive that they will not receive the punishment which
they
undoubtedly deserve if they do. Without that incentive there is nothing to
encourage such persons to make the disclosures and
to reveal the truth which
persons in the positions of the applicants so desperately desire. With that
incentive, what might unfold
are objectives fundamental to the ethos of a new
constitutional order. The families of those unlawfully tortured, maimed or
traumatised
become more empowered to discover the truth, the perpetrators become
exposed to opportunities to obtain relief from the burden of
a guilt or an
anxiety they might be living with for many long years, the country begins the
long and necessary process of healing
the wounds of the past, transforming anger
and grief into a mature understanding and creating the emotional and structural
climate
essential for the “reconciliation and reconstruction” which
informs the very difficult and sometimes painful objectives
of the amnesty
articulated in the epilogue.
[18] The alternative to the grant of
immunity from criminal prosecution of offenders is to keep intact the abstract
right to such
a prosecution for particular persons without the evidence to
sustain the prosecution successfully, to continue to keep the dependants
of such
victims in many cases substantially ignorant about what precisely happened to
their loved ones, to leave their yearning for
the truth effectively unassuaged,
to perpetuate their legitimate sense of resentment and grief and correspondingly
to allow the culprits
of such deeds to remain perhaps physically free but
inhibited in their capacity to become active, full and creative members of the
new order by a menacing combination of confused fear, guilt, uncertainty and
sometimes even trepidation. Both the victims and the
culprits who walk on the
“historic bridge” described by the epilogue will hobble more than
walk to the future with heavy
and dragged steps delaying and impeding a rapid
and enthusiastic transition to the new society at the end of the bridge, which
is
the vision which informs the epilogue.
[19] Even more crucially, but
for a mechanism providing for amnesty, the “historic bridge” itself
might never have been
erected. For a successfully negotiated transition, the
terms of the transition required not only the agreement of those victimized
by
abuse but also those threatened by the transition to a “democratic society
based on freedom and
equality”.
[17]
If the
Constitution kept alive the prospect of continuous retaliation and revenge, the
agreement of those threatened by its implementation
might never have been
forthcoming, and if it had, the bridge itself would have remained wobbly and
insecure, threatened by fear from
some and anger from others. It was for this
reason that those who negotiated the Constitution made a deliberate choice,
preferring
understanding over vengeance, reparation over retaliation,
ubuntu
[18]
over
victimisation.
[19]
[20] Is
section 20(7), to the extent to which it immunizes wrongdoers from criminal
prosecution, nevertheless objectionable on the
grounds that amnesty might be
provided in circumstances where the victims, or the dependants of the victims,
have not had the compensatory
benefit of discovering the truth at last or in
circumstances where those whose misdeeds are so obscenely excessive as to
justify
punishment, even if they were perpetrated with a political objective
during the course of conflict in the past? Some answers to
such difficulties
are provided in the sub-sections of section 20. The Amnesty Committee may grant
amnesty in respect of the relevant
offence only if the perpetrator of the
misdeed makes a full disclosure of all relevant
facts.
[20]
If the offender does
not, and in consequence thereof the victim or his or her family is not able to
discover the truth, the application
for amnesty will fail. Moreover, it will
not suffice for the offender merely to say that his or her act was associated
with a political
objective. That issue must independently be determined by the
Amnesty Committee pursuant to the criteria set out in section 20(3),
including
the relationship between the offence committed and the political objective
pursued and the directness and proximity of
the relationship and the
proportionality of the offence to the objective pursued.
[21] The result,
at all levels, is a difficult, sensitive, perhaps even agonising, balancing act
between the need for justice to victims
of past abuse and the need for
reconciliation and rapid transition to a new future; between encouragement to
wrongdoers to help
in the discovery of the truth and the need for reparations
for the victims of that truth; between a correction in the old and the
creation
of the new. It is an exercise of immense difficulty interacting in a vast
network of political, emotional, ethical and
logistical considerations. It is
an act calling for a judgment falling substantially within the domain of those
entrusted with lawmaking
in the era preceding and during the transition period.
The results may well often be imperfect and the pursuit of the act might
inherently support the message of Kant that “out of the crooked timber of
humanity no straight thing was ever
made”.
[21]
There can be
legitimate debate about the methods and the mechanisms chosen by the lawmaker to
give effect to the difficult duty
entrusted upon it in terms of the epilogue.
We are not concerned with that debate or the wisdom of its choice of mechanisms
but
only with its constitutionality. That, for us, is the only relevant
standard. Applying that standard, I am not satisfied that in
providing for
amnesty for those guilty of serious offences associated with political
objectives and in defining the mechanisms through
which and the manner in which
such amnesty may be secured by such offenders, the lawmaker, in section 20(7),
has offended any of
the express or implied limitations on its powers in terms of
the Constitution.
[22] South Africa is not alone in being confronted with
a historical situation which required amnesty for criminal acts to be accorded
for the purposes of facilitating the transition to, and consolidation of, an
overtaking democratic order. Chile, Argentina and El
Salvador are among the
countries which have in modern times been confronted with a similar need.
Although the mechanisms adopted
to facilitate that process have differed from
country to country and from time to time, the principle that amnesty should, in
appropriate
circumstances, be accorded to violators of human rights in order to
facilitate the consolidation of new democracies was accepted
in all these
countries and truth commissions were also established in such
countries.
[23] The Argentinean truth commission was created by Executive
Decree 187 of 15 December 1983. It disclosed to the government the
names of
over one thousand alleged offenders gathered during the
investigations.
[22]
The Chilean
Commission on Truth and Reconciliation was established on 25 April 1990. It
came to be known as the Rettig Commission
after its chairman, Raul Rettig. Its
report was published in 1991 and consisted of 850 pages pursuant to its mandate
to clarify
“the truth about the most serious human right violations ... in
order to bring about the reconciliation of all
Chileans”.
[23]
The Commission
on the Truth for El Salvador was established with similar objectives in 1992 to
investigate “serious acts of
violence that have occurred since 1980 and
whose impact on society urgently demands that the public should know the
truth”.
[24]
In many cases
amnesties followed in all these
countries.
[25]
[24] What
emerges from the experience of these and other countries that have ended periods
of authoritarian and abusive rule, is that
there is no single or uniform
international practice in relation to amnesty. Decisions of states in
transition, taken with a view
to assisting such transition, are quite different
from acts of a state covering up its own crimes by granting itself immunity. In
the former case, it is not a question of the governmental agents responsible for
the violations indemnifying themselves, but rather,
one of a constitutional
compact being entered into by all sides, with former victims being
well-represented, as part of an ongoing
process to develop constitutional
democracy and prevent a repetition of the abuses.
[25] Mr Soggot
contended on behalf of the applicants that the state was obliged by
international law to prosecute those responsible
for gross human rights
violations and that the provisions of section 20(7) which authorised amnesty for
such offenders constituted
a breach of international law. We were referred in
this regard to the provisions of article 49 of the first Geneva Convention for
the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, article 50 of the second Geneva Convention
for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
article 129 of the third Geneva
Convention relative to the Treatment of
Prisoners of War and article 146 of the fourth Geneva Convention relative to the
Protection
of Civilian Persons in Time of War. The wording of all these
articles is exactly the same and provides as follows:
“The High Contracting Parties undertake to enact any legislation necessary
to provide effective penal sanctions for persons
committing, or ordering to be
committed, any of the grave breaches ...”
defined in the
instruments so as to include, inter alia, wilful killing, torture or inhuman
treatment and wilfully causing great suffering
or serious injury to body or
health.
[26]
They add that each High
Contracting Party shall be under an obligation to search for persons alleged to
have committed such grave
breaches and shall bring such persons, regardless of
their nationality, before its own
courts.
[27]
[26] The issue
which falls to be determined in this Court is whether section 20(7) of the Act
is inconsistent with the Constitution.
If it is, the enquiry as to whether or
not international law prescribes a different duty is irrelevant to that
determination. International
law and the contents of international treaties to
which South Africa might or might not be a party at any particular time are, in
my view, relevant only in the interpretation of the Constitution itself, on the
grounds that the lawmakers of the Constitution should
not lightly be presumed
to authorise any law which might constitute a breach of the obligations of the
state in terms of international
law. International conventions and treaties do
not become part of the municipal law of our country, enforceable at the instance
of private individuals in our courts, until and unless they are incorporated
into the municipal law by legislative
enactment.
[28]
[27] These
observations are supported by the direct provisions of the Constitution itself
referring to international law and international
agreements. Section 231(3) of
the Constitution makes it clear that when Parliament agrees to the ratification
of or accession to
an international agreement such agreement becomes part of the
law of the country only if Parliament expressly so provides and the
agreement is
not inconsistent with the Constitution. Section 231(1) provides in express
terms that
“[a]ll rights and obligations under international agreements which
immediately before the commencement of this Constitution
were vested in or
binding on the Republic within the meaning of the previous Constitution, shall
be vested in or binding on the Republic
under this Constitution, unless provided
otherwise by an Act of Parliament.”
It is clear from
this section that an Act of Parliament can override any contrary rights or
obligations under international agreements
entered into before the commencement
of the Constitution. The same temper is evident in section 231(4) of the
Constitution which
provides that
“[t]he rules of customary international law binding on the Republic, shall
unless inconsistent with this Constitution or an
Act of Parliament, form part of
the law of the Republic.”
Section 35(1) of the
Constitution is also perfectly consistent with these conclusions. It reads as
follows:
“In interpreting the provisions of this Chapter a court of law shall
promote the values which underlie an open and democratic
society based on
freedom and equality and shall, where applicable, have regard to public
international law applicable to the protection
of the rights entrenched in this
Chapter, and may have regard to comparable foreign case
law.”
The court is directed only to “have
regard” to public international law if it is applicable to the protection
of the rights
entrenched in the chapter.
[28] The exact terms of the
relevant rules of public international law contained in the Geneva Conventions
relied upon on behalf of
the applicants would therefore be irrelevant if, on a
proper interpretation of the Constitution, section 20(7) of the Act is indeed
authorised by the Constitution, but the content of these Conventions in any
event do not assist the case of the applicants.
[29] In the first place
it is doubtful whether the Geneva Conventions of 1949 read with the relevant
Protocols thereto apply at all
to the situation in which this country found
itself during the years of the conflict to which I have
referred.
[29]
[30] Secondly,
whatever be the proper ambit and technical meaning of these Conventions and
Protocols, the international
literature
[30]
in any event clearly
appreciates the distinction between the position of perpetrators of acts of
violence in the course of war (or
other conflicts between states or armed
conflicts between liberation movements seeking self-determination against
colonial and alien
domination of their countries), on the one hand, and their
position in respect of violent acts perpetrated during other conflicts
which
take place within the territory of a sovereign state in consequence of a
struggle between the armed forces of that state and
other dissident armed forces
operating under responsible command, within such a state on the other. In
respect of the latter category,
there is no obligation on the part of a
contracting state to ensure the prosecution of those who might have performed
acts of violence
or other acts which would ordinarily be characterised as
serious invasions of human rights. On the contrary, article 6(5) of Protocol
II
to the Geneva Conventions of 1949 provides that
“[a]t the end of hostilities, the authorities in power shall endeavour to
grant the broadest possible amnesty to persons who
participated in the armed
conflict, or those deprived of their liberty for reasons related to the armed
conflict, whether they are
interned or
detained.”
[31] The need for this distinction
is obvious. It is one thing to allow the officers of a hostile power which has
invaded a foreign
state to remain unpunished for gross violations of human
rights perpetrated against others during the course of such conflict. It
is
another thing to compel such punishment in circumstances where such violations
have substantially occurred in consequence of conflict
between different
formations within the same state in respect of the permissible political
direction which that state should take
with regard to the structures of the
state and the parameters of its political policies and where it becomes
necessary after the
cessation of such conflict for the society traumatised by
such a conflict to reconstruct itself. The erstwhile adversaries of such
a
conflict inhabit the same sovereign territory. They have to live with each
other and work with each other and the state concerned
is best equipped to
determine what measures may be most conducive for the facilitation of such
reconciliation and reconstruction.
That is a difficult exercise which the
nation within such a state has to perform by having regard to its own peculiar
history, its
complexities, even its contradictions and its emotional and
institutional traditions. What role punishment should play in respect
of
erstwhile acts of criminality in such a situation is part of the complexity.
Some aspects of this difficulty are covered by Judge
Marvin Frankel in a book he
authored with Ellen
Saideman.
[31]
“The call to punish human rights criminals can present complex and
agonising problems that have no single or simple solution.
While the debate
over the Nuremberg trials still goes on, that episode - trials of war criminals
of a defeated nation - was simplicity
itself as compared to the subtle and
dangerous issues that can divide a country when it undertakes to punish its own
violators.
A nation divided during a repressive regime does not emerge suddenly united when
the time of repression has passed. The human rights
criminals are fellow
citizens, living alongside everyone else, and they may be very powerful and
dangerous. If the army and the
police have been the agencies of terror, the
soldiers and the cops aren’t going to turn overnight into paragons of
respect
for human rights. Their numbers and their expert management of deadly
weapons remain significant facts of life. ... The soldiers
and police may be
biding their time, waiting and conspiring to return to power. They may be
seeking to keep or win sympathisers
in the population at large. If they are
treated too harshly - or if the net of punishment is cast too widely - there may
be a backlash
that plays into their hands. But their victims cannot simply
forgive and forget.
These problems are not abstract generalities. They describe tough realities in
more than a dozen countries. If, as we hope, more
nations are freed from
regimes of terror, similar problems will continue to arise.
Since the situations vary, the nature of the problems varies from place to
place.”
The agonies of a nation seeking to reconcile
the tensions between justice for those wronged during conflict, on the one hand,
and
the consolidation of the transition to a nascent democracy, on the other,
has also been appreciated by other international
commentators.
[32]
It is
substantially for these reasons that amnesty clauses are not infrequent in
international agreements concluded even after a
war between different
states.
“Amnesty clauses are frequently found in peace treaties and signify the
will of the parties to apply the principle of
tabula rasa
to past
offences, generally political delicts such as treason, sedition and rebellion,
but also to war crimes. As a sovereign act
of oblivion, amnesty may be granted
to all persons guilty of such offences or only to certain categories of
offenders.”
[33]
[32] Considered
in this context, I am not persuaded that there is anything in the Act and more
particularly in the impugned section
20(7) thereof, which can properly be said
to be a breach of the obligations of this country in terms of the instruments of
public
international law relied on by Mr Soggot. The amnesty contemplated is
not a blanket amnesty against criminal prosecution for all
and sundry, granted
automatically as a uniform act of compulsory statutory amnesia. It is
specifically authorised for the purposes
of effecting a constructive transition
towards a democratic order. It is available only where there is a full
disclosure of all
facts to the Amnesty Committee and where it is clear that the
particular transgression was perpetrated during the prescribed period
and with a
political objective committed in the course of the conflicts of the past. That
objective has to be evaluated having regard
to the careful criteria listed in
section 20(3) of the Act, including the very important relationship which the
act perpetrated bears
in proportion to the object
pursued.
Amnesty in respect of the civil liability of
individual wrongdoers
[33] Mr Soggot submitted that chapter 3 of the
Constitution, and more particularly section 22, conferred on every person the
right
to pursue, in the ordinary courts of the land or before independent
tribunals, any claim which such person might have in civil law
for the recovery
of damages sustained by such a person in consequence of the unlawful delicts
perpetrated by a wrongdoer. He contended
that the Constitution did not
authorise Parliament to make any law which would have the result of indemnifying
(or otherwise rendering
immune from liability) the perpetrator of any such
delict against any claims made for damages suffered by the victim of such a
delict.
In support of that argument he suggested that the concept of
“amnesty”, referred to in the epilogue to the Constitution,
was, at
worst for the applicants, inherently limited to immunity from criminal
prosecutions. He contended that even if a wrongdoer
who has received amnesty
could plead such amnesty as a defence to a criminal prosecution, such amnesty
could not be used as a shield
to protect him or her from claims for delictual
damages suffered by any person in consequence of the act or omission of the
wrongdoer.
[34] There can be no doubt that in some contexts the word
“amnesty” does bear the limited meaning contended for by counsel.

Thus one of the meanings of amnesty referred to in The Oxford English Dictionary
is “... a general overlooking or pardon of
past offences, by the ruling
authority”
[34]
and in similar
vein, Webster’s Dictionary gives as the second meaning of amnesty “a
deliberate overlooking, as of an
offense”.
[35]
Wharton’s
Law Lexicon also refers to amnesty in the context “by which crimes against
the Government up to a certain
date are so obliterated that they can never be
brought into
charge.
[36]
[35] I cannot,
however, agree that the concept of amnesty is inherently to be limited to the
absolution from criminal liability alone,
regardless of the context and
regardless of the circumstances. The word has no inherently fixed technical
meaning. Its origin is
to be found from the Greek concept of
“amnestia” and it indicates what is described by Webster’s
Dictionary
[37]
as “an act of
oblivion”. The degree of oblivion or obliteration must depend on the
circumstances. It can, in certain
circumstances, be confined to immunity from
criminal prosecutions and in other circumstances be extended also to civil
liability.
Describing the effects of amnesty in treaties concluded between
belligerent parties, a distinguished writer states:
“An amnesty is a complete forgetfulness of the past; and as the treaty of
peace is meant to put an end to every subject of
discord, the amnesty should
constitute its first article. Accordingly, such is the common practice at the
present day. But though
the treaty should make no mention of it, the amnesty is
necessarily included in it, from the very nature of the agreement.
Since each of the belligerents claims to have justice on his side, and since
there is no one to decide between them (Book III, 
188), the condition
in which affairs stand at the time of the treaty must be regarded as their
lawful status, and if the parties
wish to make any change in it the treaty must
contain an express stipulation to that effect. Consequently all matters not
mentioned
in the treaty are to continue as they happen to be at the time the
treaty is concluded. This is also a result of the promised amnesty.
All the
injuries caused by the war are likewise forgotten; and no action can lie on
account of those for which the treaty does not
stipulate that satisfaction shall
be made; they are considered as never having happened.
But the effect of the settlement or amnesty can not be extended to things which
bear no relation to war terminated by the treaty.
Thus, claims based upon a
debt contracted, or an injury received, prior to the war, but which formed no
part of the motives for
undertaking the war, remain as they were, and are not
annulled by the treaty, unless the treaty has been made to embrace the
relinquishment
of all claims whatsoever. The same rule holds for debts
contracted during the war, but with respect to objects which have no relation
to
it, and for injuries received during the war, but not as a result of it.”
(My
emphasis)
[38]
[36] What
are the material circumstances of the present case? As I have previously said,
what the epilogue to the Constitution seeks
to achieve by providing for amnesty
is the facilitation of “reconciliation and reconstruction” by the
creation of mechanisms
and procedures which make it possible for the truth of
our past to be uncovered. Central to the justification of amnesty in respect
of
the criminal prosecution for offences committed during the prescribed period
with political objectives, is the appreciation that
the truth will not
effectively be revealed by the wrongdoers if they are to be prosecuted for such
acts. That justification must
necessarily and unavoidably apply to the need to
indemnify such wrongdoers against civil claims for payment of damages. Without
that incentive the wrongdoer cannot be encouraged to reveal the whole truth
which might inherently be against his or her material
or proprietary interests.
There is nothing in the language of the epilogue which persuades me that what
the makers of the Constitution
intended to do was to encourage wrongdoers to
reveal the truth by providing for amnesty against criminal prosecution in
respect of
their acts but simultaneously to discourage them from revealing that
truth by keeping intact the threat that such revelations might
be visited with
what might in many cases be very substantial claims for civil damages. It
appears to me to be more reasonable to
infer that the legislation contemplated
in the epilogue would, in the circumstances defined, be wide enough to allow for
an amnesty
which would protect a wrongdoer who told the truth, from both the
criminal and the civil consequences of his or her admissions.
[37] This
conclusion appears to be fortified by the fact that what the epilogue directs is
that
“amnesty shall be granted in respect of acts, omissions and offences
...”.
If the purpose was simply to provide
mechanisms in terms of which wrongdoers could be protected from criminal
prosecution in respect
of offences committed by them, why would there be any
need to refer also to “acts and omissions” in addition to offences?

The word “offences” would have covered both acts and omissions in
any event.
[38] In the result I am satisfied that section 20(7) is not
open to constitutional challenge on the ground that it invades the right
of a
victim or his or her dependant to recover damages from a wrongdoer for unlawful
acts perpetrated during the conflicts of the
past. If there is any such
invasion it is authorised and contemplated by the relevant parts of the
epilogue.
The effect of amnesty on any potential civil liability of
the state
[39] Mr Soggot contended forcefully that whatever be the
legitimate consequences of the kind of amnesty contemplated by the epilogue
for
the criminal and civil lability of the wrongdoer, the Constitution could not
justifiably authorise any law which has the effect
of indemnifying the state
itself against civil claims made by those wronged by criminal and delictual acts
perpetrated by such wrongdoers
in the course and within the scope of their
employment as servants of the state. Section 20(7) of the Act, he argued, had
indeed
that effect and was therefore unconstitutional to that
extent.
[40] This submission has one great force. It is this. If the
wrongdoer in the employment of the state is not personally indemnified
in the
circumstances regulated by the Act, the truth might never unfold. It would
remain shrouded in the impenetrable mysteries
of the past, leaving the
dependants of many victims with a grief unrelieved by any knowledge of the
truth. But how, it was argued,
would it deter such wrongdoers from revealing
the truth if such a revelation held no criminal or civil consequences for them?
How
could such wrongdoers be discouraged from disclosing the truth if their own
liberty and property was not to be threatened by such
revelations, but the state
itself nevertheless remained liable to compensate the families of victims for
such wrongdoings perpetrated
by the servants of the state?
[41] This is a
serious objection which requires to be considered carefully. I think it must be
conceded that in many cases, the wrongdoer
would not be discouraged from
revealing the whole truth merely because the consequences of such disclosure
might be to saddle the
state with a potential civil liability for damages
arising from the delictual acts or omissions of a wrongdoer (although there may
also be many cases in which such a wrongdoer, still in the service of the state,
might in some degree be inhibited or even coerced
from making disclosures
implicating his or her superiors).
[42] The real answer, however, to the
problems posed by the questions which I have identified, seems to lie in the
more fundamental
objectives of the transition sought to be attained by the
Constitution and articulated in the epilogue itself. What the Constitution
seeks to do is to facilitate the transition to a new democratic order, committed
to “reconciliation between the people of South
Africa and the
reconstruction of society”. The question is how this can be done
effectively with the limitations of our resources
and the legacy of the
past.
[43] The families of those whose fundamental human rights were
invaded by torture and abuse are not the only victims who have endured
“untold suffering and injustice” in consequence of the crass
inhumanity of apartheid which so many have had to endure
for so long.
Generations of children born and yet to be born will suffer the consequences of
poverty, of malnutrition, of homelessness,
of illiteracy and disempowerment
generated and sustained by the institutions of apartheid and its manifest
effects on life and living
for so many. The country has neither the resources
nor the skills to reverse fully these massive wrongs. It will take many years
of strong commitment, sensitivity and labour to “reconstruct our
society” so as to fulfill the legitimate dreams of new
generations exposed
to real opportunities for advancement denied to preceding generations initially
by the execution of apartheid
itself and for a long time after its formal
demise, by its relentless consequences. The resources of the state have to be
deployed
imaginatively, wisely, efficiently and equitably, to facilitate the
reconstruction process in a manner which best brings relief and
hope to the
widest sections of the community, developing for the benefit of the entire
nation the latent human potential and resources
of every person who has directly
or indirectly been burdened with the heritage of the shame and the pain of our
racist past.
[44] Those negotiators of the Constitution and leaders of
the nation who were required to address themselves to these agonising problems
must have been compelled to make hard choices. They could have chosen to direct
that the limited resources of the state be spent
by giving preference to the
formidable delictual claims of those who had suffered from acts of murder,
torture or assault perpetrated
by servants of the state, diverting to that
extent, desperately needed funds in the crucial areas of education, housing and
primary
health care. They were entitled to permit a different choice to be made
between competing demands inherent in the problem. They
could have chosen to
direct that the potential liability of the state be limited in respect of any
civil claims by differentiating
between those against whom prescription could
have been pleaded as a defence and those whose claims were of such recent origin
that
a defence of prescription would have failed. They were entitled to reject
such a choice on the grounds that it was irrational.
They could have chosen to
saddle the state with liability for claims made by insurance companies which had
compensated institutions
for delictual acts performed by the servants of the
state and to that extent again divert funds otherwise desperately needed to
provide
food for the hungry, roofs for the homeless and black boards and desks
for those struggling to obtain admission to desperately overcrowded
schools.
They were entitled to permit the claims of such school children and the poor and
the homeless to be preferred.
[45] The election made by the makers of the
Constitution was to permit Parliament to favour “the reconstruction of
society”
involving in the process a wider concept of
“reparation”, which would allow the state to take into account the
competing
claims on its resources but, at the same time, to have regard to the
“untold suffering” of individuals and families whose
fundamental
human rights had been invaded during the conflict of the past. In some cases
such a family may best be assisted by a
reparation which allows the young in
this family to maximise their potential through bursaries and scholarships; in
other cases the
most effective reparation might take the form of occupational
training and rehabilitation; in still other cases complex surgical
interventions
and medical help may be facilitated; still others might need subsidies to
prevent eviction from homes they can no longer
maintain and in suitable cases
the deep grief of the traumatised may most effectively be assuaged by
facilitating the erection of
a tombstone on the grave of a departed one with a
public acknowledgement of his or her valour and nobility. There might have to
be differentiation between the form and quality of the reparations made to two
persons who have suffered exactly the same damage
in consequence of the same
unlawful act but where one person now enjoys lucrative employment from the state
and the other lives in
penury.
[46] All these examples illustrate, in my
view, that it is much too simplistic to say that the objectives of the
Constitution could
only properly be achieved by saddling the state with the
formal liability to pay, in full, the provable delictual claims of those
who
have suffered patrimonial loss in consequence of the delicts perpetrated with
political objectives by servants of the state during
the conflicts of the past.
There was a permissible alternative, perhaps even a more imaginative and more
fundamental route to the
“reconstruction of society”, which could
legitimately have been followed. This is the route which appears to have been
chosen by Parliament through the mechanism of amnesty and nuanced and
individualised reparations in the Act. I am quite unpersuaded
that this is not
a route authorised by the epilogue to the Constitution.
[47] The epilogue
required that a law be adopted by Parliament which would provide for
“amnesty” and it appreciated the
“need for reparation”,
but it left it to Parliament to decide upon the ambit of the amnesty, the
permissible form and
extent of such reparations and the procedures to be
followed in the determination thereof, by taking into account all the relevant
circumstances to which I have made reference. Parliament was therefore entitled
to decide that, having regard to the resources of
the state, proper reparations
for those victimised by the unjust laws and practices of the past justified
formulae which did not
compel any irrational differentiation between the claims
of those who were able to pursue enforceable delictual claims against the
state
and the claims of those who were not in that position but nevertheless deserved
reparations.
[48] It was submitted by Mr Soggot that the reference to
the “need for reparation” in the epilogue is contained only in
the
fourth paragraph of the epilogue and does not appear in the directive to
Parliament to adopt a law “providing for the mechanisms,
criteria and
procedures, including tribunals, if any, through which ... amnesty shall be
dealt with ...”. He argued from this
that what the makers of the
Constitution must have contemplated was that the ordinary liability of the
state, in respect of damages
sustained by others in consequence of the acts of
the servants of the state, remained intact, and was protected by section 22 of
the Constitution. In my view, this is a fragmentary and impermissible approach
to the structure of the epilogue. It must be read
holistically. It expresses
an integrated philosophical and jurisprudential approach. The very first
paragraph defines the commitment
to the “historic bridge” and the
second paragraph expands on the theme of this bridge by elevating “the
pursuit
of national unity, ... reconciliation between the people of South Africa
and the reconstruction of society.” It then goes
on in the third
paragraph, in very moving and generous language, to “secure” the
“foundation” of the nation
by transcending “the divisions and
strife of the past, which generated gross violations of human rights” and
elects,
in eloquent terms in the next paragraph, to make the historic choice in
favour of understanding above vengeance, ubuntu over victimisation
and “a
need for reparation but not for retaliation.” This philosophy then
informs the fifth paragraph which directs
Parliament to adopt a law providing
for amnesty and is introduced by the words “[i]n order to advance such
reconciliation and
reconstruction, amnesty shall be granted ...”. The
reference to “
such
reconciliation and reconstruction”
embraces the continuing radiating influence of the preceding paragraphs
including the reference
to “the need for reparation”. Approached in
this way, the reparations authorised in the Act are not alien to the legislation
contemplated by the epilogue. Indeed, they are perfectly consistent with, and
give expression to, the extraordinarily generous and
imaginative commitment of
the Constitution to a philosophy which has brought unprecedented international
acclaim for the people of
our country. It ends with the deep spirituality and
dignity of the last line:
“Nkosi sikelel’ iAfrika - God seΝn
Suid-Afrika”
The indemnity of organisations and
persons in respect of claims based on vicarious liability
[49] It was not
contended by Mr Soggot that even if the state was properly rendered immune
against claims for damages in consequence
of delicts perpetrated by its
servants, acting within the scope and in the course of their employment,
individuals and organisations
should not enjoy any similar protection in respect
of any vicarious liability arising from any unlawful acts committed by their
servants
or members. He was correct in that attitude. Apart from the fact that
the wrongdoers concerned might be discouraged from revealing
the truth which
implicated their employers or organisations on whose support they might still
directly or indirectly depend, the
Constitution itself could not successfully
have been transacted if those responsible for the negotiations which preceded it
and the
political organisations to which they belonged, were going to remain
vulnerable to potentially massive claims for damages arising
from their
vicarious liability in respect of such wrongful acts perpetrated by their agents
or members. The erection of the “historic
bridge” would never have
begun.
Conclusion
[50] In the result, I am satisfied that
the epilogue to the Constitution authorised and contemplated an
“amnesty” in its
most comprehensive and generous meaning so as to
enhance and optimise the prospects of facilitating the constitutional journey
from
the shame of the past to the promise of the future. Parliament was,
therefore, entitled to enact the Act in the terms which it did.
This involved
more choices apart from the choices I have previously
identified.
[39]
They could have
chosen to insist that a comprehensive amnesty manifestly involved an inequality
of sacrifice between the victims
and the perpetrators of invasions into the
fundamental rights of such victims and their families, and that, for this
reason, the
terms of the amnesty should leave intact the claims which some of
these victims might have been able to pursue against those responsible
for
authorising, permitting or colluding in such acts, or they could have decided
that this course would impede the pace, effectiveness
and objectives of the
transition with consequences substantially prejudicial for the people of a
country facing, for the first time,
the real prospect of enjoying, in the
future, some of the human rights so unfairly denied to the generations which
preceded them.
They were entitled to choose the second course. They could
conceivably have chosen to differentiate between the wrongful acts committed
in
defence of the old order and those committed in the resistance of it, or they
could have chosen a comprehensive form of amnesty
which did not make this
distinction. Again they were entitled to make the latter choice. The choice of
alternatives legitimately
fell within the judgment of the lawmakers. The
exercise of that choice does not, in my view, impact on its constitutionality.
It
follows from these reasons that section 20(7) of the Act is authorised by the
Constitution itself and it is unnecessary to consider
the relevance and effect
of section 33(1) of the Constitution.
Order
[51] In the
result, the attack on the constitutionality of
section 20(7)
of the
Promotion of
National Unity and Reconciliation Act 34 of 1995
must fail. That was the only
attack which was pursued on behalf of the applicants in this Court. It
accordingly follows that the
application must be, and is,
refused.
Chaskalson P, Ackermann, Kriegler, Langa, Madala, Mokgoro,
O’Regan and Sachs JJ concur in the judgment of Mahomed DP.
DIDCOTT
J:
[52] I concur in the order that Mahomed DP proposes to make. I also agree
in general with, and wish to add nothing to, the comprehensive
and lucid reasons
given by him for the conclusions to which he has come that the
Promotion of
National Unity and Reconciliation Act (34
of 1995) is not unconstitutional in
absolving:
(a) all those to whom amnesties have been granted from personal liability,
either criminal or civil, for their unlawful activities
that are covered;
(b) everyone else and all bodies and organisations besides the state from civil
liability, incurred vicariously or otherwise, for
such activities on the part of
persons who have obtained their own amnesties in respect of
those.
After much hesitation, and without managing to shed
altogether some doubts that linger in my mind even now, I feel persuaded on
balance
that the same must go for the civil liability of the state. Both my
approach to that troublesome issue and the line I take in endeavouring
to
resolve it are narrower than and, in their emphasis, different from the ones
preferred by Mahomed DP. I shall therefore explain
separately why, at the end
of that particular journey, I nevertheless find myself arriving rather
reluctantly at the same destination
as his. The considerations which account
largely for those qualms of mine will emerge too from the
explanation.
[53] That the discharges from civil liability are all
incompatible with
section 22
of the interim Constitution (Act 200 of 1993) is
clear beyond question. For they deny to a class of persons the right bestowed
by
it on everyone -
“... to have justiciable disputes settled by a court of law or, where
appropriate, another independent and impartial
forum”.
Both the Committee on Amnesty and the Committee
on Reparation and Rehabilitation which the statute establishes appear to be
rateable
for those purposes as independent and impartial tribunals, and I shall
assume that they fit that bill. But the determination of
justiciable disputes
is hardly a function of either. That leaves the courts of law as the only
avenue that would have been open
to those asserting the right had they still
enjoyed it. Subject to an obvious qualification, the class to whom it has
instead been
denied consists of people pursuing or wishing to pursue contested
claims against any of the parties now protected which are based
on a liability
alleged for some unlawful activity of the kind encompassed. The qualification
is this. Such claims are confined,
firstly, to those intrinsically cognizable
by a court according to the laws in force at the time when the causes of action
arose
and, secondly, to the ones not yet extinguished or barred by prescription
or the like in terms of a scheme consistent with the Constitution.
The rider
must be added because, once a claim is unenforceable for the want of either
attribute, it can never generate a justiciable
dispute over its substantiation
and the right does not then enter the reckoning. The relevance to my thinking
of that consequence
will become apparent in a moment or two.
[54] Whenever the right arises but is denied, on the other hand, the
validity of the denial depends on the permissibility of that
under section 33 of
the Constitution. Its familiar sub-section (1) is not the sole component that
counts in the context of this
case. So does sub-section (2). The combined
effect of the two sub-sections is that the denial will pass constitutional
muster if
we find it to be reasonable, justifiable in an open and democratic
society based on freedom and equality, and not a negation of the
essential
content of the right or, should we make no complete finding along those lines,
if we are satisfied that some other provision
of the Constitution allows it
independently.
[1]
The only further
provisions which may have such an import, as far as I can see, are the ones
contained in the postscript to the
Constitution or its epilogue, as Mahomed DP
has called that, which under section 232(4) forms part of the Constitution and
ranks
equally with the rest of
it.
[2]
[55] In investigating
the tolerability of the denial I do not set the store that Mahomed DP does by
the impossibility of compensating
all the countless victims of apartheid in any
adequate measure or form for the incalculable damage done to them during that
era,
and by the unavailability of legal redress to a large majority of the
victims either because the harm suffered was not in the first
place the type for
which the law could offer some remedy or because, though it fell within that
restricted field, their claims had
lapsed with the passage of time. Such harm,
the scale and horror of which Mahomed DP has described so vividly, is highly
pertinent
to the political and social policy animating the statute, indeed of
crucial importance there. It has scant bearing that I can see,
however, on the
constitutional issue now under discussion, since the lack of a right by the many
can scarcely provide a sound excuse
for its denial to others, be they relatively
but few, whose title to it is clear. Nor do I attach great weight to the cost
that
the state would inevitably incur in meeting not some obligations foisted
freshly on it, but ones endured all along from which the
legislature has now
seen fit to release it. We have no means of assessing that cost, even
approximately. But, unless perhaps its
amount unbeknown to us is prohibitively
high in relation to our national revenue and expenditure, it does not strike me
as a strong
reason for depriving the persons to whom the obligations are owed of
their normal and legal due.
[56] Much the same may be said no doubt about
the civil amnesties tendered to parties other than the state. A major factor in
each
of those distinguishes it sharply, however, from the immunity that the
state has been granted.
[57] The amnesties made available to
individuals are indispensable if an essential object of the legislation is to be
achieved, the
object of eliciting the truth at last about atrocities committed
in the past and the responsibility borne for them. The primary
sources of
information concerning those infamies, the perpetrators themselves, would hardly
be willing to divulge it voluntarily,
honestly and candidly without the
protection of exemptions from personal liability, civil no less than criminal.
The emergence
of the truth, or a good deal of that at any rate, depends after
all on no fear of the consequences continuing to daunt them from
telling it, on
their encouragement by the prospect of amnesties to reveal it instead. The
shroud of silence that has enveloped their
activities for too long would
otherwise go on doing so. And that would have put paid effectively to the bulk
of legal claims against
them, I mention in parenthesis, had their escapes from
liability not disposed of the lot in any event. For enough evidence to
substantiate
the claims would then have seldom come to light. The immunity
awarded to the state does not serve the same cardinal purpose. Having
made a
clean breast of their own misbehaviour and obtained personal amnesties in
respect of it, the wrongdoers are unlikely to feel
inhibited in disclosing such
role as the state may have played in their activities. To absolve them but not
it from liability would
have furnished the people then suing it, what is more,
with an additional advantage. They would have been helped to prove the unlawful
conduct alleged, and its vicarious responsibility for that, by calling as
witnesses and relying on the testimony of those very wrongdoers.
[58] The amnesties that shield bodies and organisations besides the
state and persons apart from the actual offenders, to turn next
to that
category, appear to have had a different though equally cogent explanation. We
all know that the agreement reached ultimately
on the Constitution was the
culmination of protracted and intense negotiations over its tenor and details
alike, in which the main
protagonists were organisations, bodies and individuals
with a history of participation in the bitter political struggle that had
preceded the process. It seems highly improbable that, when the postscript to
the Constitution came up for discussion, the negotiators
would ever have
entertained the idea of amnesties which did not cover both their own
organisations or bodies and persons found within
their political ranks,
including themselves. Any such suggestion, if pressed with vigour on a point so
delicate, might well have
jeopardised the entire negotiations. One has no
reason to suppose and can scarcely imagine, however, that a comparable
protectiveness
or loyalty towards an entity as impersonal as the state would
have been sentiments cherished by any significant number of negotiators.
[59] The cluster of amnesties share, on the other hand, a common
denominator. I refer to one of the basic objects promoted by the
statute, as
seen from its provisions, and the effect to that which the amnesties are meant
collectively to give. The object that
I have in mind is this. Once the truth
about the iniquities of the past has been established and made known, the book
should be
closed on them so that the catharsis thus engendered may divert the
energies of the nation from a preoccupation with anguish and
rancour to a future
directed towards the goal which both the postscript to the Constitution and the
preamble to the statute have
set by declaring in turn that -
“... the pursuit of national unity, the well-being of all South African
citizens and peace require reconciliation between the
people of South Africa and
the reconstruction of society”.
The book would not be
closed while litigation against the state proceeded throughout the land,
accompanied by a constant fanfare of
publicity and lasting much longer in all
probability than the strictly limited period which, in the interests of putting
an early
end to unfruitful recriminations, the statute fixes for the work that
it requires.
[60] All the considerations canvassed in the three preceding
paragraphs of this judgment have a bearing, to a greater or lesser extent,
on
both of the alternative enquiries that arise under section 33. They thus
introduce the particular one to which I now turn, the
question whether the
postscript to the Constitution, rightly construed, encompasses the notion of an
immunity operating in favour
of the state.
[61] The postscript does not
differentiate between the various beneficiaries of the amnesties that it
envisages. Indeed it identifies
none. Any number of dictionaries, lay and
legal, define the word “amnesty”. But no definition has come to my
attention
which throws light on that specific question. We must therefore
deduce the answer, as best we can, from the postscript read as
a whole.
Friedman JP and Farlam J decided in
Azanian Peoples Organisation and Others v
Truth and Reconciliation Commission and
Others
[3]
that the
“broadest possible” meaning should be given to the word where it
appeared within the setting of the postscript
thus read. They said so, to be
sure, in the context of an argument which had been addressed to them about the
applicability of
the word to civil wrongs in addition to crimes, and when their
minds were not attuned to the narrower issue of state immunity. No
stricter
construction seems to be warranted once that issue confronts us, however, in
the absence at any rate of some recognised
usage attributing to the word a sense
which suggests that the state may be intrinsically ineligible for such
protection. The circumstances
that I discussed a moment ago in ascribing a
common denominator to all the amnesties tend on the contrary to call for an
interpretation
equally wide, and no less so in themselves on account of the
separate factors distinguishing those granted to the state from the
ones
dispensed elsewhere. Liabilities incurred by the state would otherwise fall
outside the ambit of the “integrated philosophical
and jurisprudential
approach” to the treatment of liability in general which Mahomed DP sees,
and I too accept, as significant
characteristic of the
postscript.
[4]
Such a construction
and the reasons for it which I have mentioned tell in favour of amnesties
embracing all bearers of liability,
amnesties that consequently include the
state among their beneficiaries.
[62] The scales are tipped further that
way, in my final estimation, by an aspect of the matter which I have not yet
touched. It
concerns the homage that the postscript pays to the “need for
reparation”. Reparations are usually payable by states,
and there is no
reason to doubt that the postscript envisages our own state shouldering the
national responsibility for those. It
therefore does not contemplate that the
state will go scot free. On the contrary, I believe, an actual commitment on
the point is
implicit in its terms, a commitment in principle to the assumption
by the state of the burden.
[63] What remains to be examined is the
extent to which the statute gives effect to the acknowledgment of that
responsibility. The
question arises because it was said in argument to have
done so insufficiently.
[64] The long title of the statute declares one
of the objects which it promotes to be -
“... the taking of measures aimed at the granting of reparation to, and
the rehabilitation and the restoration of the human
and civil dignity of,
victims of violations of human rights”.
Section 1
defines “reparation” in terms that include -
“... any form of compensation,
ex gratia
payment, restitution,
rehabilitation or recognition”.
The word
“victims” is said in the same section to cover -
“... persons who ... suffered harm in the form of physical or mental
injury, emotional suffering, pecuniary loss or a substantial
impairment of human
rights ... as a result of a gross violation of human rights or ... as a result
of an act associated with a political
objective for which amnesty has been
granted”.
The section continues by adding to the
“victims” thus described a further class consisting of “such
relatives or
dependants” of the ones already listed “as may be
prescribed” by regulation. Sections 26 and 27 provide for the
process of
awarding reparations. Everyone professing to be a “victim” may
apply for an award to the Committee on Reparation
and Rehabilitation after the
matter has been referred there. It must decide in the first place whether the
applicant is truly a
“victim”. Its next task, having accepted him
or her as one if it does so, is to consider the application and recommend
to the
President what should be done “in an endeavour to restore the human and
civil dignity of such victim”. The President
is required in turn to
submit to Parliament his own recommendations on the case and all others like it.
A joint committee of both
houses has to consider those. Its decision, should
Parliament approve of that, must then be implemented by regulations emanating
from the President that “determine the basis and conditions upon which
reparation shall be granted”. All reparations
are payable ultimately, in
terms of section 42, from a special fund stocked mainly with money allocated by
Parliament to that purpose.
[65] The statute does not, it is true, grant
any legally enforceable rights in lieu of those lost by claimants whom the
amnesties
hit. It nevertheless offers some
quid pro quo
for the loss and
establishes the machinery for determining such alternative redress. I cannot
see what else it might have achieved
immediately once, in the light of the
painful choices described by Mahomed
DP
[5]
and in the exercise of the
legislative judgment brought to bear on them, the basic decision had been taken
to substitute the indeterminate
prospect of reparations for the concrete reality
of legal claims wherever those were enjoyed. For nothing more definite,
detailed
and efficacious could feasibly have been promised at that stage, and
with no prior investigations, recommendations and decisions
of the very sort for
which provision is now made.
[66] Such are the reasons for my eventual
agreement with the full range of the order dismissing the present application.
But for
one problem posed by section 33(1), which strikes me as wellnigh
intractable, I would probably have come to the same conclusion,
and could no
doubt have reached it more easily, by treading the path indicated there.
Negating the essential content of a constitutional
right is, however, a concept
that I have never understood. Nor can I fathom how one applies it to a host of
imaginable situations.
Baffled as I am by both conundrums, I would have been at
a loss to hold that the denial of the right in question either had or had
not
negated its essential content. It is therefore with a sigh of relief that I
find myself free to say, as I end this judgment,
that my reliance on sub-section
(2) of section 33 dispenses altogether with the need for me to bother about
sub-section
(1).
For the applicants: D Soggot SC and M Khoza instructed by CO Morolo and
Partners
For the respondents: GJ Marcus and DG Leibowitz instructed by the State
Attorney
Amicus curiae: Centre for Applied Legal Studies, University of the
Witwatersrand
[1]
Act 200 of 1993, which is referred
to in this judgment as the Constitution.
[2]
Described in the epilogue to the
Constitution as a date after 8 October 1990 and before 6 December
1993. Cut-off
date is defined in section 1 of the Act
to mean the latest date allowed as the cut-off date in terms of the
Constitution
as set out under the heading National Unity and
Reconciliation .
[3]
Section 3(1)(a).
[4]
Section 3(1)(b).
[5]
Section 3(1)(c).
[6]
Section 3(1)(d).
[7]
Section 3(3).
[8]
Sections 3(3)(a), 12 and 14.
[9]
Sections 3(3)(c), 23 and 25. The
recommendations of the committee are themselves considered by the President who
then makes recommendations
to Parliament. This is considered by a joint
committee of Parliament and the decisions of the joint committee, after approval
by
Parliament, are implemented by regulations made by the President. Section
27.
[10]
Section 3(3)(b).
[11]
Section 17(3). It is common
cause that the Committee on Amnesty, in fact appointed by the President,
includes three judges of the
Supreme Court.
[12]
Section 19.
[13]
Section 20(1).
[14]
Sub-section 6 which is referred
to in sub-sections 8 and 9 simply provides that the Committee must by
proclamation in the Gazette
make known the full names of any person to whom
amnesty has been granted, together with sufficient information to identify the
act,
omission or offence in respect of which such amnesty has been granted.
[15]
Section 71(1) of the
Constitution.
Executive Council, Western Cape Legislature, and Others v
President of the Republic of South Africa and Others
[1995] ZACC 8
;
1995 (4) SA 877
(CC);
1995 (10) BCLR 1289
(CC) at para 41;
Premier, KwaZulu-Natal, and Others v
President of the Republic of South Africa and Others
[1995] ZACC 10
;
1996 (1) SA 769
(CC);
1996 (12) BCLR 1561
(CC) at para 12;
The Azanian Peoples Organisation and
Others v The Truth and Reconciliation Commission and Others,
(CPD) Case No
4895/96, 9 May 1996, not yet reported, at 20-1 (the
AZAPO
case).
[16]
Section 71(2) of the
Constitution.
[17]
Sections 33(1)(a)(ii) and 35(1)
of the Constitution.
[18]
The meaning of that concept is
discussed in
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6)
BCLR 665
(CC) at paras 224-7; 241-51; 263 and 307-13.
[19]
See the fourth paragraph of the
epilogue to the Constitution.
[20]
Section 20(1)(c) of the
Act.
[21]
Immanuel Kant paraphrased in
Isaiah Berlins essay on Two concepts of Liberty in
Four Essays on Liberty,
(Oxford University Press, Oxford 1969) at 170.
See also Ackermann J in
Ferreira v Levin NO and Others; Vryenhoek and Others
v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para
53.
[22]
Pasqualucci The Whole
Truth and Nothing But the Truth: Truth Commissions, Impunity and the
Inter-American Human Rights System
12
Boston University International
Law Journal
321 (1994) at 337-8.
[23]
Id at 338, quoting the National
Commission on Truth and Reconciliation Report of the Chilean Commission
on Truth and Reconciliation
Berryman (trans) (1993).
[24]
Id at 339, quoting the Report
of the Commission on the Truth for El Salvador From Madness to Hope: The
12-Year War in El
Salvador United Nations s/25500 (1993).
[25]
Id at 343.
[26]
Article 50 of the first Geneva
Convention; article 51 of the second Geneva Convention; article 130 of the
third Geneva Convention
and article 147 of the fourth Geneva Convention.
[27]
Article 49 of the first Geneva
Convention; article 50 of the second Geneva Convention; article 129 of the third
Geneva Convention
and article 146 of the fourth Geneva Convention.
[28]
R v Secretary of State for
the Home Department, Ex parte Brind and Others
[1991] UKHL 4
;
[1991] 1 AC 696
(HL) at
761G-762D;
Pan American World Airways Incorporated v S.A. Fire and Accident
Insurance Co. Ltd.
1965 (3) SA 150
(A) at 161C;
Maluleke v Minister of
Internal Affairs
1981 (1) SA 707
(B) at 712G-H;
Binga v Cabinet for South
West Africa and Others
1988 (3) SA 155
(A) at 184H-185D;
S v Petane
1988 (3) SA 51
(C) at 56F-G; Hahlo and Kahn,
The South African Legal System
and Its Background,
(Juta & Co Ltd, Kenwyn 1968) at 114; Dugard,
International Law: A South African Perspective
(Juta & Co Ltd,
Kenwyn 1994) at 339-46.
[29]
The Geneva Conventions of 1949
apply only to cases of declared war or of any armed conflict which may
arise between two or
more of the High Contracting Parties. (No High
Contracting Parties were involved in the South African conflict.) The
Conventions
were extended by article 1(4) of Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection
of Victims of
International Armed Conflicts (Protocol I) (adopted on 8 June 1977) to
armed conflicts in which peoples are
fighting against colonial
domination and alien occupation and against regimes in the exercise of their
rights of self-determination.
Even if the conflict in South Africa
could be said to fall within this extension (this was not accepted by the Cape
Supreme Court
in the
AZAPO
case referred to in footnote 15 supra),
Protocol I could only become binding after a declaration of intent to abide
thereby had been
deposited with the Swiss Federal Council in terms of article 95
as read with article 96 of this Protocol. This Protocol was never
signed or
ratified by South Africa during the conflict and no such
declaration was deposited with
that
Council by any of the
parties to the conflict. As far as Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating
to the Protection of Victims of
Non-International Armed Conflicts (Protocol II) (also adopted on 8 June 1977) is
concerned, it equally
cannot assist the case of the applicants because it is
doubtful whether it applies at all (see article 1(1) to Protocol II) but if
it
does, it actually requires the authorities in power, after the end of
hostilities, to grant amnesty to those previously engaged
in the conflict.
[30]
See, for example, Dugard, supra
n 28 at 333; and see further the references contained in footnotes 31, 32 and
33, infra
.
[31]
Frankel
Out of the Shadows
of the Night: The Struggle for International Human Rights
(Delacorte Press,
New York 1989) at 103-4.
[32]
See Orentlicher
Settling Accounts: The Duty To Prosecute Human Rights Violations of a
Prior Regime,
100
Yale LJ
2537
(1991) at 2544 and by the same
author A reply to Professor Nino
100
Yale LJ
2641
(1991).
See also a recent interview with the same author commenting on the South African
Truth Commission in
Issues of Democracy
, published by the United States
Information Services, Johannesburg, Vol 1, No 3, May 1996 at 33.
[33]
Bernhardt (ed)
Encyclopedia
of Public International Law
, (North-Holland, Amsterdam, London, New York,
Tokyo 1992) Volume I at 148 and Bernhardt (ed)
Encyclopedia of Public
International Law,
(North-Holland, Amsterdam, New York, Oxford 1982) Volume
3, Use of Force, War and Neutrality, Peace Treaties (A-M)
at
14-15.
[34]
The Oxford English
Dictionary
, 2nd Ed, Vol I at 406.
[35]
Websters New
Twentieth Century Dictionary
, 2nd Ed at 59.
[36]
Whartons Law
Lexicon
, 14th Ed at 59.
[37]
Supra
n 35.
[38]
De Vattel
The Law of Nations
or the Principles of Natural Law Applied to the Conduct and to the Affairs of
Nations and of Sovereigns
trans by Fenwick (Carnegie Institute of
Washington, Washington 1916) at 351, paras 20-2, quoted by Friedman JP and
Farlam J in the
AZAPO
case, supra n 15 at 24.
[39]
In paragraphs 44 and 45
supra.
[1]
The full text of both
sub-sections will be found in the judgment of Mahomed DP at para 10.
[2]
The complete text of the
postscript has been reproduced in para 3 of the same judgment and of section
232(4) in para 14.
[3]
Their joint judgment has not yet
been reported. It was delivered in the Cape Provincial Division of the Supreme
Court on 9 May 1996.
[4]
See para 48 of his judgment.
[5]
See para 50 of his
judgment.